Prescott v. U.S.

Decision Date26 August 1992
Docket NumberNo. 90-16758,90-16758
PartiesNuclear Reg. Rep. P 20,552, 23 Envtl. L. Rep. 20,016 Keith L. PRESCOTT, et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Mark B. Stern, U.S. Dept. of Justice, Washington, D.C., for defendant-appellant.

Stewart L. Udall, Santa Fe, N.M., Dale Haralson, Haralson, Kinerk & Morey, Tucson, Ariz., Larry C. Johns, Johns & Johns, Las Vegas, Nev., for plaintiffs-appellees.

Appeal from the United States District Court for the District of Nevada.

Before WILLIAM A. NORRIS and THOMPSON, Circuit Judges, and EZRA, District Judge. *


WILLIAM A. NORRIS, Circuit Judge:

This case arises from the government's alleged negligence in protecting workers at the Nevada Nuclear Testing Site. The government appeals the district court's motion denying summary judgment on the basis of the discretionary function exception to the Federal Tort Claims Act (FTCA). We affirm.


These consolidated actions under the FTCA seek damages for injuries allegedly sustained by 220 individuals in the course of the Government's nuclear weapons testing program in Nevada. All worked at the United States Nevada Test Site and claim to have suffered radiation injuries as a result of the government employees' alleged negligence in conducting nuclear tests at the site between 1951 and 1981. The plaintiffs claim that their alleged injuries were the result of the following tortious acts by the United States 1. Failure to establish or supervise the establishment of adequate procedures to monitor and determine the amount of radiation in a given geographic area or the amount of radiation to which an individual has been exposed.

2. Failure to instruct and advise workmen at the Nevada Test Site as to the possible detrimental health effects of radiation exposure.

3. Failure to provide protective clothing or other apparatus to eliminate, reduce, or minimize the radiation exposure and consequent adverse health effects.

4. Continuing to expose or to allow the exposure of workmen to radiation contamination well knowing or having reason to believe that said continued exposures were actually or potentially unsafe.

5. Failing to take reasonable and necessary precautions in the conduct of the tests which in many instances resulted in unnecessary and undesigned radiation exposure.

6. Failure to advise the individuals exposed to the extent of their exposures and possible detrimental health effects.

7. Failure to properly train, supervise, and inform its employees, agents, contractors, and subcontractors in matters concerning radiation containment and radiation health procedures.

8. Failure to advise workers that because of their exposure to radiation they should have medical check-ups and follow-up medical observations in order to diagnose as early as possible any cancers which might develop.

Prescott v. United States, 724 F.Supp. 792, 798-99 (D.Nev.1989).

The government moved for summary judgment, claiming that plaintiffs' actions were barred by the discretionary function exception to the FTCA. The FTCA authorizes suits against the United States for damages for personal injuries when a private person would be liable under the law of the place where the act or omission causing the injury occurred. See 28 U.S.C. §§ 1346(b), 2674. Such a suit is not available, however, when the act or omission complained of is "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the [g]overnment." 28 U.S.C. § 2680(a).

In support of its summary judgment motion, the government proffered no evidence that the alleged acts of negligence flowed from choices grounded in political, social or economic policy. Instead, the government relied on In re Consolidated United States Atmospheric Testing Litigation, 820 F.2d 982 (9th Cir.1987), cert. denied, 485 U.S. 905, 108 S.Ct. 1076, 99 L.Ed.2d 235 (1988) (Atmospheric Testing ), for the proposition that everything the government does in carrying out the nuclear testing program falls within the discretionary function exception.

The district court denied the government's motion on the ground that Atmospheric Testing has been effectively overruled by Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). The court then certified the alleged acts and omissions for trial. After its ruling, the district court granted the government's motion to certify the discretionary function issue for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and we granted the government's petition for interlocutory review.


We need not reach the question whether Atmospheric Testing has been effectively overruled by Berkovitz because we disagree with the government's broad reading of Atmospheric Testing as providing blanket immunity to all actions related to the nuclear testing operations. Contrary to the government's view, Atmospheric Testing does not say that the discretionary function exception immunizes every act or omission of government employees in carrying out the nuclear testing program.

In Atmospheric Testing, civilian and military participants in the government's nuclear testing program sued the United States on two categories of claims. The first rested on alleged negligence in failing to take adequate safety precautions at the test site; the second was based on the government's alleged duty to warn participants of the dangers to which they had been or would be exposed. The district court granted summary judgment to the United States on the basis that the claims were barred by the discretionary function exception. We affirmed on the basis of Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953).

In Dalehite, the Supreme Court held that specific acts of negligence came within the purview of the discretionary function exception because they were "performed under the direction of a plan developed at a high level under a direct delegation of plan-making authority from the apex of the Executive Department." Id. at 40, 73 S.Ct. at 970. In Atmospheric Testing, we found Dalehite "squarely on point." 820 F.2d at 993. Crucial to our analysis was the fact that the alleged acts of negligence were the result of a balancing of competing policy considerations by on-site officials who had been entrusted with the power to engage in such discretionary decisionmaking. We said, "The responsibility for carrying out the Safety Plan was assigned to the officials in charge of the tests who had discretion to adopt and modify the Plan as necessary to achieve the objectives of the test." Id. at 995 (emphasis added). In rejecting the claims arising from decisions by military commanders, we particularly relied on the following facts:

The need to balance risks against test objectives was particularly acute in tests involving troop maneuvers.... It was recognized that the desire of the military to expose troops to realistic combat conditions could interfere with the AEC's weapons testing objectives. The arrangements ultimately incorporated in the Operations Plans represented an accommodation of these divergent requirements by the AEC and military officials. In later tests, involving large scale military maneuvers under battlefield conditions, these considerations led to delegation of responsibility for radiological and physical safety of troops to the military commanders.

Id. at 986 (emphasis added).

In further holding that the government's failure to issue warnings was also covered by the discretionary function exception, we also relied on the fact that the decision whether to issue warnings involved the weighing of competing policy consideration. Quoting Dalehite, we said, " 'Where there is policy judgment and decision there is discretion.' " Id. at 998 (quoting Dalehite, 346 U.S. at 36, 73 S.Ct. at 968). Thus, in Atmospheric Testing, the acts of alleged negligence came within the purview of the discretionary function exception because the district court found that the specific acts of alleged negligence flowed directly from the policy choices of on-site officials who had been explicitly entrusted with the responsibility of weighing competing policy considerations. Atmospheric Testing, 820 F.2d at 995.

As we read Atmospheric Testing, then, it did not, as the government contends, provide blanket immunity to all aspects of nuclear testing; 1 rather, it provided immunity solely to those acts resulting from policy choices that were expressly delegated to test site officials. See id.; see also Roberts v. United States, 887 F.2d 899, 901 (9th Cir.1989). In Roberts, a suit brought by the widows of two men who died from leukemia four years after contamination by radioactive fallout produced by the venting of an underground nuclear test, we considered whether Atmospheric Testing immunized the government against plaintiffs' claim of negligence. Id. at 900. If Atmospheric Testing had provided blanket immunity to all activities associated with nuclear testing, there is no question that in Roberts we would have affirmed the district court's order denying relief on the ground that we lacked subject matter jurisdiction. Instead, we remanded. Implicit in our observation that "the record is not sufficiently developed for [us] to determine whether Roberts' challenge is different in any meaningful way from that in Atmospheric Testing " is the idea that Atmospheric Testing neither provides blanket immunity nor precludes a particularized fact-specific inquiry. Id. at 901. Indeed, in Roberts, we went on to note that "[t]he crucial distinction between this case and Atmospheric Testing appears to be that Roberts does not challenge the safety procedures authorized by the AEC but rather the failure to develop the mandated procedures." Id. ...

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